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Calendar No. 584
105th CONGRESS
2d Session
S. 2392
_______________________________________________________________________
A BILL
To encourage the disclosure and exchange of information about computer
processing problems and related matters in connection with the
transition to the year 2000.
_______________________________________________________________________
September 17, 1998
Reported with an amendment and an amendment to the title
Calendar No. 584
105th CONGRESS
2d Session
S. 2392
To encourage the disclosure and exchange of information about computer
processing problems and related matters in connection with the
transition to the year 2000.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 30, 1998
Mr. Bennett (by request) (for himself, Mr. Dodd, Mr. Moynihan, Mr.
Kohl, and Mr. Robb) introduced the following bill; which was read twice
and referred to the Committee on the Judiciary
September 17, 1998
Reported by Mr. Hatch, with an amendment and an amendment to the title
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To encourage the disclosure and exchange of information about computer
processing problems and related matters in connection with the
transition to the year 2000.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Year 2000 Information
Disclosure Act''.</DELETED>
<DELETED>SEC 2. FINDINGS AND PURPOSES.</DELETED>
<DELETED> (a) Findings.--The Congress finds the following:</DELETED>
<DELETED> (1) Thousands of computer systems, software, and
semiconductors are not capable of recognizing certain dates in
1999 and after December 31, 1999, and will read dates in the
year 2000 and thereafter as if they represent the year 1900 or
thereafter. This could cripple systems that are essential to
the functioning of markets, commerce, consumer products,
utilities, government, and safety systems, in the United States
and throughout the world. Reprogramming or replacing affected
systems before this problem cripples essential systems is a
matter of national and global interest.</DELETED>
<DELETED> (2) The prompt and thorough disclosure and
exchange of information related to year 2000 readiness of
entities, products, and services would greatly enhance the
ability of public and private entities to improve their year
2000 readiness and, thus, is a matter of national importance
and a vital factor in minimizing disruption to the Nation's
economic well-being.</DELETED>
<DELETED> (3) Concern about the potential for legal
liability associated with the disclosure and exchange of year
2000 compliance information is impeding the disclosure and
exchange of such information.</DELETED>
<DELETED> (4) The capability to freely disseminate and
exchange information relating to year 2000 readiness with the
public and with other companies without undue concern about
litigation is critical to the ability of public and private
entities to address year 2000 needs in a timely
manner.</DELETED>
<DELETED> (5) The national interest will be served by
uniform legal standards in connection with the disclosure and
exchange of year 2000 readiness information that will promote
disclosures and exchanges of such information in a timely
fashion.</DELETED>
<DELETED> (b) Purposes.--Based upon the powers contained in article
I, section 8, clause 3 of the United States Constitution, the purposes
of this Act are to promote the free disclosure and exchange of
information related to year 2000 readiness and to lessen burdens on
interstate commerce by establishing certain uniform legal principles in
connection with the disclosure and exchange of information related to
year 2000 readiness.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> For purposes of this Act, the following definitions
apply:</DELETED>
<DELETED> (1) Year 2000 statement.--``Year 2000 statement''
means any statement--</DELETED>
<DELETED> (A) concerning an assessment, projection,
or estimate concerning year 2000 processing
capabilities of any entity or entities, product, or
service, or a set of products or services;</DELETED>
<DELETED> (B) concerning plans, objectives, or
timetables for implementing or verifying the year 2000
processing capabilities of an entity or entities, a
product, or service, or a set of products or services;
or</DELETED>
<DELETED> (C) concerning test plans, test dates,
test results, or operational problems or solutions
related to year 2000 processing by--</DELETED>
<DELETED> (i) products; or</DELETED>
<DELETED> (ii) services that incorporate or
utilize products.</DELETED>
<DELETED> (2) Statement.--``Statement'' means a disclosure
or other conveyance of information by one party to another or
to the public, in any form or medium whatsoever, excluding, for
the purposes of any actions brought under the securities law,
as that term is defined in section 3(a)(47) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), documents or
materials filed with the Securities and Exchange Commission, or with
Federal banking regulators pursuant to section 12(i) of the Securities
Exchange Act of 1934, or disclosures or writings made specifically in
connection with the sale or offering of securities.</DELETED>
<DELETED> (3) Year 2000 processing.--``Year 2000
processing'' means the processing (including, without
limitation, calculating, comparing, sequencing, displaying, or
storing), transmitting, or receiving of date or date/time data
from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, and leap year
calculations.</DELETED>
<DELETED> (4) Year 2000 internet website.--``Year 2000
Internet Website'' means an Internet website or other similar
electronically accessible service, designated on the website or
service by the person creating or controlling the website or
service as an area where year 2000 statements and other
information about the year 2000 processing capabilities of an
entity or entities, a product, service, or a set of products or
services, are posted or otherwise made accessible to the
general public.</DELETED>
<DELETED> (5) Covered action.--``Covered action'' means a
civil action arising under Federal or State law except for any
civil action arising under Federal or State law brought by a
Federal, State, or other public entity, agency, or authority
acting in a regulatory, supervisory, or enforcement
capacity.</DELETED>
<DELETED> (6) Republication.--``Republication'' means any
repetition of a statement originally made by another.</DELETED>
<DELETED> (7) Consumer.--``Consumer'' means an individual
who buys a consumer product other than for purposes of
resale.</DELETED>
<DELETED> (8) Consumer product.--``Consumer product'' means
any personal property or service which is normally used for
personal, family, or household purposes.</DELETED>
<DELETED>SEC. 4. PROTECTION FOR YEAR 2000 STATEMENTS.</DELETED>
<DELETED> (a) In General.--Except as otherwise provided in
subsection (c), in any covered action, to the extent such action is
based on an allegedly false, inaccurate, or misleading year 2000
statement, the maker of any such statement shall not be liable under
Federal or State law with respect thereto unless the claimant
establishes, in addition to all other requisite elements of the
applicable action, that the statement was material, and--</DELETED>
<DELETED> (1) where the statement was not a republication,
that the statement was--</DELETED>
<DELETED> (A) made with knowledge that the statement
was false, inaccurate, or misleading;</DELETED>
<DELETED> (B) made with an intent to mislead or
deceive; or</DELETED>
<DELETED> (C) made with a grossly negligent failure
to determine or verify that the statement was accurate
and not false or misleading; and</DELETED>
<DELETED> (2) where the statement was a republication of a
statement regarding a third party, that the republication was
made--</DELETED>
<DELETED> (A) with knowledge that the statement was
false, inaccurate, or misleading; or</DELETED>
<DELETED> (B) without a disclosure by the maker that
the republished or repeated statement is based on
information supplied by another and that the maker has not verified the
statement.</DELETED>
<DELETED> (b) Year 2000 Internet Website.--In any covered action in
which the adequacy of notice about year 2000 processing is at issue and
no clearly more effective method of notice is practicable, the posting
of a notice by the entity purporting to have provided such notice on
that entity's year 2000 Internet website shall be presumed to be an
adequate mechanism for providing such notice. Nothing in this
subsection (b) shall--</DELETED>
<DELETED> (1) alter or amend any Federal or State statute or
regulation requiring that notice about year 2000 processing be
provided using a different mechanism;</DELETED>
<DELETED> (2) create a duty to provide notice about year
2000 processing;</DELETED>
<DELETED> (3) preclude or suggest the use of any other
medium for notice about year 2000 processing or require the use
of an Internet website; or</DELETED>
<DELETED> (4) mandate the content or timing of any notices
about year 2000 processing.</DELETED>
<DELETED> (c) Defamation or Similar Claims.--In any covered action
arising under any Federal or State law of defamation, or any Federal or
State law relating to trade disparagement or a similar claim, to the
extent such action is based on an allegedly false year 2000 statement,
whether oral or published in any medium, the maker of any such year
2000 statement shall not be liable with respect to such statement,
unless the claimant establishes by clear and convincing evidence, in
addition to all other requisite elements of the applicable action, that
the statement was made with knowledge that the statement was false or
with reckless disregard as to its truth or falsity.</DELETED>
<DELETED> (d) Limitation on Effect of Year 2000 Statements.--In any
covered action, no year 2000 statement shall be interpreted or
construed as an amendment to or alteration of a written contract or
written warranty, whether entered into by a public or private party.
This subsection (d) shall not apply--</DELETED>
<DELETED> (1) to the extent the party whose statement is
alleged to have amended or altered a contract or warranty has
otherwise agreed in writing to so alter or amend the written
contract or written warranty;</DELETED>
<DELETED> (2) to year 2000 statements made in conjunction
with the formation of the written contract or written warranty;
or</DELETED>
<DELETED> (3) where the contract or warranty specifically
provides for its amendment or alteration through the making of
a year 2000 statement.</DELETED>
<DELETED>Existing law shall apply to determine what effect, if any, a
year 2000 statement within the scope of paragraph (1), (2) or (3) has
on a written contract or written warranty.</DELETED>
<DELETED> (e) Special Data Gathering.--A Federal entity, agency, or
authority may expressly designate requests for the voluntary provision
of information relating to year 2000 processing (including without
limitation, year 2000 statements) as ``Special Year 2000 Data Gathering
Requests'' made pursuant to this subsection (e). Information provided
in response to such requests shall be prohibited from disclosure under
the Freedom of Information Act (5 U.S.C. 552 et. seq.), and may not be
used by any Federal entity, agency, or authority, directly or
indirectly, in any civil action arising under any Federal or State law,
provided, however, that nothing in this subsection (e) shall preclude a
Federal entity, agency, or authority from separately obtaining the
information submitted in response to this subsection (e) through the
use of independent legal authorities and using such separately obtained
information in any action.</DELETED>
<DELETED>SEC. 5. EXCLUSIONS.</DELETED>
<DELETED> (a) Consumer Information.--This Act does not cover
statements made directly to a consumer in connection with the sale of a
consumer product by the seller or manufacturer or provider of the
consumer product.</DELETED>
<DELETED> (b) Effect on Information Disclosure.--This Act does not
affect, abrogate, amend, or alter, and shall not be construed to
affect, abrogate, amend, or alter, the authority of a Federal or State
entity, agency, or authority to enforce a requirement to provide,
disclose, or not to disclose, information under a Federal or State
statute or regulation or to enforce such statute or
regulation.</DELETED>
<DELETED> (c) Contracts and Other Claims.--Except as may be
otherwise provided in subsection 4(d), this Act does not affect,
abrogate, amend, or alter, and shall not be construed to affect,
abrogate, amend, or alter, any right by written contract, whether
entered into by a public or private party, under any Federal or State
law, nor shall it preclude claims not based solely on year 2000
statements.</DELETED>
<DELETED> (d) Duty or Standard of Care.--This Act shall not be
deemed to impose upon the maker or publisher of any year 2000 statement
any increased obligation, duty or standard of care than is otherwise
applicable under Federal or State law. Nor does this Act preclude any
party from making or providing any additional disclaimer or like
provisions in connection with any year 2000 statement.</DELETED>
<DELETED> (e) Trademarks.--This Act does not affect, abrogate,
amend, or alter, and shall not be construed to affect, abrogate, amend,
or alter, any right in a trademark, trade name, or service mark, under
any Federal or State law.</DELETED>
<DELETED> (f) Injunctive Relief.--Nothing in this Act shall be
deemed to preclude a claimant from seeking temporary or permanent
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